FAQs about costs assessment

A client of a law practice may apply for an assessment of costs (except certain commercial and government client as defined in s170 Legal Profession Uniform Law)
Third Party Payers - (see definitions in s171 Legal Profession Uniform Law; s302A of the Legal Profession Act 2004)
Law Practices retaining other Law practices on behalf of clients.
Law Practices who have given a bill of costs.
Parties to a court or tribunal case where a costs order has been made.
Time limits under legal profession Acts, applicable sections and forms appear in following table.

Which Legal Profession Act applies to my application for costs assessment?

The relevant legal profession Act is determined as set out in the table below:

(UL Sched 4Clause 18)

(UL Sched 4, Clause 18)

If first instructions given before 1 October 2005

Application to determine costs under order of a court or tribunal	Client or third party application	Practitioner application
(Ordered Costs) If substantive matter in which costs orders obtained was commenced on or after 1 July 2015 (LPULAReg 59)
If first instructions between 1 October 2005 and 30 June 2015	If first instructions between 1 October 2005 and 30 June 2015
If first instructions given before 1 October 2005	If first instructions given before 1 October 200

Are there time limits for lodging Costs Assessment applications?

Yes, time limits under legal profession legislation are very important and are summarised in the tables below. Firstly determine which Act applies (from the table in the section above) and then confirm the relevant times to bring your costs assessment application. The types of application, the Act and Sections and the applicable forms appear in following table:

Summary of Times for assessment applications under Legal Profession Uniform Law (UL) and Legal Profession Uniform Law Application Act 2014 (LPULAA):

Application (Section/ Form)

Within 12 months after:

-bill was given or request for payment was made to client or third party payer or -when costs paid if no bill or request for payment

Additional time may be allowed by Manager Costs Assessment on written application

No time limit.

(but before lodging application, must wait 21 days after sending the completed application and bill of costs with request for any objections LPULA Regulation 2015 - r35)

Summary of times for assessment applications in Legal Profession Act 2004:

(See information about which Act Applies)

Application
Section/Form

Section 350

Application by Client or Third Party Payer

Forms 1.1, 1.2, 1.4

Lodge within 12 months after bill was given or request for payment was made to client or third party payer

Any application for an assessment to be dealt with after this 12 months can be made to the Supreme Court by filing a Summons in the Common Law Division with the relevant filing fee. If the application requires a hearing there is also a hearing fee.

Evidence in support of the application is usually required by way of affidavit.

The forms for Summons and affidavit are available on Supreme Court website under Forms and Fees.

Section 351

Law practice retaining another law practice on behalf of a client

Form 1.3

Section 352

Application by Law Practice giving a bill

Forms 2.1, 2.2, 2.3

Must wait 30 days after bill was given to client

Section 353

Party/Party Application.

Form 3

No time limit in legislation.to lodge a party party costs aassessment application

Summary of Times for assessment applications in Legal Profession Act 1987 (Division 6):

Section/Application/Form

If the costs are unpaid, no time limit.

If costs are partly or wholly paid, 12 months.

Within 30 days after bill was given or within such time as the Manager, Costs Assessment may allow.

Applications to extend time to the Manager, Costs Assessment are to be made in writing.

Section 201

Barrister or solicitor giving a bill

Form 2

How do you make an application and what are the fees?

An application must be made in accordance with the regulations and be accompanied by the fee prescribed by the Legal Profession regulations. An application is made by:

completing the approved form in triplicate (with a further copy for your records),

any supporting documentation that you wish to include,

preparing the application fee

in the table in the section above.

More information concerning what is required for an application is set out in the information sheets appearing with the the approved forms. If you are unable to pay the fee, you may apply to the Manager, Costs Assessment to waive or postpone the fee. The Supreme Court form Application to postpone, remit or waive payment of court fee may be used and sent to the Manager, Costs Assessment.

What should I keep in mind when preparing my application?

Ensure you have identified and used the correct names of the parties in the application.
Failure to properly identify the parties may hold up the application if an amendment is necessary. Costs Assessors cannot amend applications. An amended application must be made to the Manager, Costs Assessment.
If the correct person or entity is not identified in your application you may have difficulties in filing the resulting certificates and enforcing any judgments. (For example - a Law firm party needs to be correctly named as either the named partners trading as X Law Firm or if the law practice is incorporated, the name of that corporation)
Ensure your application complies with the time limits and within the limitation periods that apply – see table above. If your application does not comply with the time limits or is out of time, there may be no jurisdiction for an assessment. Where applicable, application for additional time to file an application may be made to the Supreme Court or the Manager, Costs Assessment.

21 days or the earlier provision of objections, before lodging the application. (see LPULAR r35 and LPR 2005 r125). Failure to ensure that 21 days has passed before lodging will mean that there is no jurisdiction for the assessment to proceed as the application has not been made properly.

How do I object?

Clicking on this link will direct you to a list of common objections (DOCX, 28.5 KB) (DOCX, 28.5 KB) (DOCX, 28.5 KB) that can be made to a Law Practice's bill/invoice.

What happens once an application is made?

The procedure for Manager Costs Assessment to deal with an application for costs assessment is set out in the applicable Regulations:

Ordered (Party Party) applications:

The applications will be processed and referred to a Costs Assessor as soon as practicable after it is lodged.

Client, Third party Applications:

Manager Costs Assessment sends the application to the Costs respondent with a request for any objections to be providing within 21 days. After the 21 days (and any additional time for for processing) the matter is referred to a costs assessor.

Practitioner Applications:

Manager Costs Assessment sends the application to the Costs respondent with a request for any objections to be providing within 21 days. If objections are provided they are sent to the practitioner for any response within a further 21 days. After the objection period and any response time has expired, (and any additional time for processing), the application is referred to a costs assessor.

Any objections or responses received out of time are sent on to the assessor as also required by the regulations.

In all types of costs assessment applications, the parties are advised of the details of the costs assessor, who will then also write to the parties with any requirements and time table for provision of any further material. The assessor will consider all material and then issue their determination with reasons. They will then advise the parties that the assessment is completed and send the certificate and reasons to the Manager Costs Assessment. If any assessor fees are payable, the liable party will be invoiced and the certificates of determination will be released to the parties after payment of those fees(by either party) to the Manager Costs Assessment.

How parties are to communicate with each other and the Costs Assessor?

This information sheet (PDF, 152.1 KB) (PDF, 152.1 KB) (PDF, 152.1 KB) provides guidance about how parties are expected to communicate with each other, with costs assessors and with the costs assessment section.

How is an application referred to a Costs Assessor?

The Manager, Costs Assessment is to refer applications for assessment of costs to the most suitable Costs Assessor having regard to the following:

the availability of costs assessors
the nature of the matter
in the case of an assessment of ordered(party/party) costs - the jurisdiction of the court or tribunal in which the order for costs was made
the location of the parties and the Australian legal practitioners acting for the parties concerned
the avoidance of conflict of interests of costs assessors.

Where ever possible, the Manager, Costs Assessment will refer related applications, particularly those involving the same parties or matters, to the same Costs Assessor. Related matters should be noted in the application or covering letter and a request can be made to refer an application to a Costs Assessor who is already handling a related application.

A Costs Assessor who has an interest or a conflict in an application must, as soon as practicable after becoming aware of that fact, refer the application to the Manager, Costs Assessment for referral to another Costs Assessor.

If the Manager, Costs Assessment is satisfied that it is inappropriate for a Costs Assessor to determine a particular application that has been referred to the Costs Assessor, the Manager, Costs Assessment may revoke the referral of the application and refer the application for assessment to another Costs Assessor. A request to revoke a referral must be made in writing (email preferred) setting out the reasons and with a copy being sent to the other party. Any request to change an assessor should be made as soon as possible as once an assessor commences work, fees will be charged and may be payable as part of the costs of the assessment.

Once an application has been referred to a Costs Assessor the Manager does not have any role within the assessment.

Can I get an extension to lodge my objections and responses?

Requests to the Manager Costs Assessment for extra time should not be made as t he Manager cannot formally extend the 21 day for objections and responses as set out in the Regulations. The procedure for dealing with applications by the Manager are mandatory and must be followed. However, a ny objections or responses that are duly lodged after they are due will still be forwarded to the assigned Costs Assessor as part of the procedure in the regulations.

Once a matter is allocated to an Assessor, any request for additional time for submissions must be made to the Assessor.

Costs Assessors are required to give parties a reasonable opportunity to make written submissions, which may include objections and responses to objections.

How is a costs assessment conducted?

Costs assessment is not a proceeding in the Supreme Court. Costs Assessments are conducted on the papers. The parties correspond with the Costs Assessor as directed. It is important that any information the assessor is to consider is clearly and succinctly set out in the application or objections. If too much material or unorganised files are provided to the assessor this is likely to increase the time spent and the costs charged for the assessment.

Costs Assessors generally will not speak with the parties and will only communicate in writing with a copy of all material to and from the assessor expected to be provided to all parties.

The Costs Assessor is required to give the parties a reasonable opportunity to make submissions. The parties are also to comply with the notices and directions by a Costs Assessor and any requirement that a party provide particulars or produce documents. The Costs Assessor receives documentation and submissions, assesses the costs and then issues certificates of determination and a statement of reasons.

Failure by a party to comply with the directions of a Costs Assessor may result in the Costs Assessor declining to deal with the application. Alternatively, the Costs Assessor may continue to deal with the application only on the basis of the information provided.

Failure by a legal practitioner to comply with the directions of a Costs Assessor without reasonable excuse is capable of being professional misconduct.

What are certificates of determination?

At the end of the assessment process the Costs Assessor will provide Certificates and Reasons with the result of the assessment. Under the legislation, the certificates can be filed in a court and be registered as judgments that can then be enforced.

In a practitioner or client application, a Costs Assessor will issue a certificate of determination that either confirms the bill of costs or substitutes an amount that in the Costs Assessor's opinion is fair and reasonable.

In an ordered costs (party/party) application a Costs Assessor will issue a certificate of determination of the fair and reasonable amount of costs to be paid as the result of a court or tribunal order.

What are certificates of the costs of the costs assessment?

There are costs associated with an assessment including the assessor fees and the application fee. The costs assessor determines the amount and liability for the costs of the assessment process.

In a practitioner or client application, a Costs Assessor may issue a certificate of determination for the Costs of the costs assessment. If a certificate for the costs of the costs assessment is not issued the Costs Assessment Scheme will pay for the costs of that assessment.

In an Ordered costs (party/party) application a Costs Assessor will issue a certificate of determination for the costs of the costs assessment and identify the liabilities of the parties for those costs of the assessment process.

The party liable for the costs of the costs assessment is to pay the amount in the certificate to the Manager, Costs Assessment, who will send an invoice to the liable party. However, as the non liable party is often waiting for the certificate of determination, either party can pay the Costs of the assessment to the Manager for the release of the certificates. If the non liable party makes that payment this will be noted on the certificate so that they can seek to recover the amount from the liable party.

If the costs of the costs assessment are not paid (by either party), the Manager, Costs Assessment may take action to recover the costs of the costs assessment.

How long does an assessment take and are there Time Standards?

The Costs Assessment Rules Committee (CARC) has published a document entitled "Time Standards in Costs Assessment and Reviews" (DOC, 50.0 KB) (DOC, 50.0 KB) (DOC, 50.0 KB). This covers time expectations for both parties and for assessors. The time taken for each costs assessment depends upon the nature of the application and the conduct of the parties. Costs Assessors may set a timetable and a timeframe when corresponding with the parties.

What can you do if you are concerned that the assessment is taking too long or the Costs Assessor does not reply to your correspondence?

If the assessment is outside the time guidelines as recommended by CARC (above), you may make an enquiry of the Costs Assessor requesting an estimate of the completion date.

If you are concerned at raising such a request with the Costs Assessor, you may contact the Manager, Costs Assessment by email (with a copy to the other party). The Manager will contact the Costs Assessor for an estimate of completion time and either the Assessor or Manager will respond to the query.

If any delay continues, you may contact the Manager again who may investigate the delay as a complaint and take action if necessary.

What happens if the parties settle and agree on the costs?

If application has not been referred to an Assessor, the costs applicant should immediately inform the Manager, Costs Assessment (email preferred) that the application has settled. Usually the application may be withdrawn or finalised with no further action.

If application has been referred to a Costs Assessor, costs applicant must inform the Costs Assessor immediately so that no further work or expense incurred on the assessment process.

If parties seek a certificate on an agreed amount, they must advise the Costs Assessor of the agreed amount and any agreement on the costs of the costs assessment so that any certificates can be issued to reflect the settlement.

The costs of the assessment are still payable if the parties settle and the Costs Assessor will determine who is liable for the costs and issue a certificate of the costs of the costs assessment.

What does a Costs Assessor do once the determination is complete?

When the assessment is completed, the Costs Assessor writes to the parties advising that the determination has been made and the amount to be paid to the Manager Costs Assessment for the release of the certificates. At the same time, the Assessor also forwards the certificates of determination and statement of reasons to the Manager, Costs Assessment.

Once the Costs Assessor completes their functions they have no further role and will not continue to determine or re-determine an application.

All further correspondence about the assessment application should be sent to the Manager, Costs Assessment (email preferred).

Who pays for the certificates?

If the Costs Assessor issues a certificate for the costs of the costs of the costs assessment, the Costs Assessor will advise the parties that the certificate(s) has been forwarded to the Manager, Costs Assessment and will be available to the parties on payment of the costs of the costs assessor.

Please allow at least seven days for the certificates and reasons to be forwarded and processed by the cost assessment section following notification by the assessor.

The cost assessor has determined the liability for these assessor's costs. The Manager, Costs Assessment will issue an invoice for the relevant amount to the party that has been determined as liable for the costs of the costs assessment. However, the Manager, Costs Assessment will accept payment of the amount from either party so that the certificates can be released and sent to the parties. If the non-liable party has made the payment for release of the certificates, this will be noted in a certificate so that they can seek to recover from the liable party.

The most efficient and timely method of payment is by credit card to the NSW Court Service Centre by telephone on 1300 679 272.

Payment can also be made by bank cheque, solicitor's cheque or money order payable to "The Supreme Court of NSW" and may be made in person in the Supreme Court registry, or by post to GPO Box 3, SYDNEY NSW 2001.

a nd the reasons to the parties. If the amo unt is not paid (by either party), the Manager, Costs Assessme nt may recover the amount from the party liable to pay as a debt.

Can the Manager, Costs Assessment release the certificates without prior payment?

Certificates are sent to the parties without prior payment if:

the Costs Assessor determines that no party is liable for their costs, the certificates will be released to the parties.
the Manager, Costs Assessment waived or postponed the original application fee, the certificates will be released without the need for prior payment. However, the party determined to be liable for the costs of the costs assessment will still be required to pay the amount in due course and if not paid the amount will need to be recovered by the Manager as a debt.

Otherwise, the Manager, Costs Assessment cannot waive or postpone the amount of the assessor fees.

What if there is an error in the certificates?

If there is an "inadvertent error" in a certificate, the legislation provides that it may be amended by the Costs Assessor.

A party seeking an amendment may contact the Costs Assessor directly to request an amendment of an inadvertent error or email the Manager Costs Assessment with the request. The Costs Assessor will consider the request. If the Costs Assessor determines to issue an Amended certificate, they will send it to the Manager who will then forward it onto the parties.